1 

AIR FORCE DISCHARGE REVIEW BOARD HEARING RECORD 

NAME OF SERVICE MEMBER (LAST, FIRST MIDDLE INITIAL) 

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~ T Y ~ E  UOTH  I x 
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1 

,  mmsEL 
No 

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PERSONAL APPEARANCE 

 

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NAME ;F  COUNSEL AND OR ORGANIZATION 

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1  GRADE 
MSGT 

1  AFSNISSAN 
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ADDRES5 AND OR ORGANIZATION OF COUNSEL 

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MEMBER SITTING  TGEN 

1  O T T O E N I  

1  UOTHC 

VOTE OF THE BOARD 

4 

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ISSUES 

A01.39 
A02.09 
A85.07 

INDEX  NUMBER 

A67.30 
A61.00 

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' 3 

4 

1 

1 

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EXHIBITS SUBMITTED TO THE BOARD 

ORDER APPOINTING  THE BOARD 
APPLICATION FOR REVIEW OF DISCHARGE 
LETTER OF NOTIFICATION 
BRlEF OF PERSONNEL  FILE 
COUNSEL'S RELEASE TO THE BOARD 
ADDITIONAL EXHIBITS SUBMITTED AT TIME OF 
PERSONAL APPEARANCE 

TAPE RECORDING OF PERSONAL APPEARANCE  HE 

HEARING  DATE 

1  17 Nov 2006 

1  FD-2005-00405 

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APPLICANT S ISSUE AND THE BOARD'S DECISIONAL  RATIONAL ARE DISCUSSED ON THE ATTACHED AIR FORCE DISCHAROE REVIEW BOARD DECISlONAL RATIONALE 

Case heard in Washington, D.C. via video teleconference from Travis AFB, California. 

Advise applicant of the decision of the Board and the right to submit an application to the AFBCMR 

Names and votes will be made available to the applicant at the applicant's  request. 

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SAFIMRBR 
550 C STREET WEST, SUITE 40 
RANDOLPH AFB, TX 78 150-4742 

SECRETARY OF THE AIR FORCE PERSONNEL COUNCIL 
,\lUFOUCb  Ul%CH4R(;b U t \ l t \ b   BO%UD 
I ~ 3 ~ C O M I l % L I U U R , b b  
\bILI(,  3RU  tI OOR 
ANDREWS AFB. MD 20762-7002 

AFHQ FORM 0-2077, JAN 00 

I 

(EF-V2) 

Previous edition will be used 

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AIR FORCE DISCHARGE REVIEW BOARD DECISIONAL RATIONALE 

CASE NUMBER 

FD-2005-00405 

GENERAL:  The applicant appeals for upgrade of discharge to honorable. 

The applicant appeared and testified before the Discharge Review Board (DRB) at Andrews AFB, Maryland, 
without counsel, via video teleconference from Travis AFB, California, on 17 Nov 2006. 

The attached brief contains available pertinent data on the applicant and the factors leading to the discharge. 

FINDINGS:  Upgrade of discharge is denied. 

The  Board  finds  that  neither  the  evidence  of  record  nor  that  provided  by  the  applicant  substantiates  an 
inequity or impropriety that would justify  a change of discharge. 

ISSUE: 

Issue  1.  The applicant contends his discharge was inequitable because it was too harsh and did not take into 
account his more than twenty years of service to the Air Force.  He states that he always put the Air Force's 
needs above his own and that he served honorably for over twenty years.  The applicant contends that one 
incident of misconduct, committed at home and not on duty time, should not overshadow his 
accomplishments and that he deserves an honorable discharge.  The records show the applicant received a 
civilian conviction for downloading child pornography onto his home computer.  He was sentenced to 12 
months confinement (with 6 months being suspended), lifetime probation, restitution, and fees.  Evidence 
from a pre-treatment  assessment of the applicant done prior to his conviction indicates that the applicant 
admitted to masturbating while thinking about having sex with a child after viewing images of child 
pornography.  However, the applicant vehemently denied such actions during his personal appearance. 
When questioned why the counselor included such a statement in the assessment if the applicant had not 
made such a statement, the applicant continued to deny making such a statement.  The DRB found the 
applicant's denial on this point not to be credible.  The DRB found that the applicant had not served 
honorably for 20 years as the records show that he was downloading child pornography while on active duty 
for approximately 18 months well prior to completing 20 years of service.  The Board concluded the 
misconduct was a significant departure from conduct expected of all military members.  The characterization 
of the discharge received by the applicant was found to be appropriate. 

Issue 2.  The applicant states that his discharge did not take into account the good things he did while in the 
service.  The DRB took note of the applicant's duty performance as documented by his performance reports, 
letters of recommendation and other accomplishments.  However, they found the seriousness of the 
applicant's misconduct offset any positive aspects of his duty performance.  The Board concluded the 
discharge was appropriately characterized given the serious nature of the applicant's  misconduct. 

Issue 3.  The applicant raises a potential impropriety by stating that his area defense counsel did not 
adequately advise him of his rights during the discharge process.  The applicant contends that his defense 
counsel did not inform him that he had the right to a discharge board or to submit statements on his own 
behalf for consideration by the separation authority.  He states that when he signed the memorandum 
unconditionally waiving his right to a discharge board or to submit statements, that he was not given 
adequate time to review the document as he was working at his prison work release job and was not given 
the time to consult with his defense counsel.  The applicant claims that he was completely unaware that he 
had the right to present his case to a discharge board.  The DRB found the applicant's  claim not to be 
credible.  The DRB noted that at the time of his discharge board waiver, the applicant was a master sergeant 

with over 20 years in the Air Force.  The DRB simply did not believe that the applicant would not have been 
aware of his rights, that his defense counsel would not have explained his rights to him, or that he would 
have signed the board waiver document without reviewing it first. 

Issue 4.  The applicant raises a potential impropriety by stating that his assigned defense counsel wrongly led 
him to believe that he had a "99.9  percent" chance of having his retirement application accepted by the 
Secretary of the Air Force's designee in lieu of administrative discharge.  On 25 April 2002, the applicant 
submitted his application for retirement in lieu of administrative discharge.  This application was denied on 
23 July 2002 by SAFIMRB.  The DRB again found this assertion by the applicant not to be credible.  The 
DRB simply did not believe that the applicant's defense counsel would have made such a definitive 
statement regarding the applicant's chances that his retirement application would have been accepted.  Even 
had the applicant's defense counsel gone out on such a limb, neither this statement nor the applicant's 
reliance on such a statement would have changed the outcome of this case. 

CONCLUSIONS:  The  Discharge  Review  Board  concludes  that  the  discharge  was  consistent  with  the 
procedural  and  substantive  requirements  of the  discharge  regulation  and  was  within  the  discretion  of the 
discharge authority and that the applicant was provided full administrative due process. 

In view of the foregoing findings the Board further concludes that there exists no  legal or equitable basis for 
upgrade of discharge, thus the applicant's discharge should not be changed. 

Attachment: 
Examiner's Brief 

DEPARTMENT  OF  THE  AIR  FORCE 

AIR  FORCE  DISCHARGE  REVIEW  BOARD 

ANDREWS  AFB,  MD 

(Former MSGT)  (HGH MSGT) 

1 .   MATTER  UNDER  REVIEW:  Appl recfd a UOTHC Disch fr USAF Luke AFB, AZ on 23 Jul 
02 UP AFI 36-3208, para 5.51 and 5.52.1 (Civilian Conviction and Commission of a 
Serious Offense -  Sexual Perversion).  Appeals for Honorable Discharge. 

2 .   BACKGROUND: 

a. DOB: 12 Jul 59.  Enlmt Age: 21 5/12.  Disch Age: 43 0/12. Educ: HS DIPL. 

AFQT: N/A.  A-40,  E-54,  G-27, M-44. PAFSC: 2W171 -  Aircraft Armament Systems 
Craftsman. DAS: 15 Aug 94. 

b.  Prior Sv: (1) AFRes 13 Dec 80 -  3 May 81 (4 months 21 days)(Inactive). 

(2) Enlisted as AB 4 May 81 for 4 yrs.  Extended 24 Nov 82 

for 8 months.  Extended 14 Feb 85 for 6 months.  Extended 17 Apr 85 for 6 months. 
Reenlisted as Sgt 13 Feb 86 for 4 yrs.  Extended 23 Nov 88 for 12 months. 
Extended 3 Jun 89 for 12 months.  Extended 26 Dec 90 for 7 months.  Reenlisted as 
TSgt 1 Feb 94 for 6 yrs.  Svd:  18 yrs 5 months 26 days, all AMS.  AMN -  Unknown. 
A1C -  4 May 82.  SrA -  1 Sep 84.  Sgt -  1 Sep 85.  SSgt -  1 Jan 87.  TSgt -  1 Jan 
94.  APRs: 9,9,9,9,9,9,9,9,9,9. EPRs: 5,4,4,5,5,5,5,5,5,5. 

3 .   SERVICE  UNDER  REVIEW: 

a.  Reenlisted as TSgt 29 Oct 99 for 5 yrs. Svd: 02 Yrs 08 Mo 25 Das, all 

AMS . 

b.  Grade Status:  MSgt  -  16 Oct 00 

c.  Time Lost:  None. 

d.  Art 15's:  None. 

e.  Additional: LOR, 23 AUG 01 -  Unknown  (missing). 

f.  CM:  None. 

g.  Record of SV: 16 Jun 99 -  15 Jun 00  Luke AFB  5  (Annual) 
16 Jun 00 -  15 Jun 01  Luke AFB  4  (Annual) 

h.  Awards &  Decs:  AFCM W/3 DEVS, NCOPMER ~ / 1  DEV, NDSM W/1 DEV, AFOSLTR 

W/2 DEVS, AFOSSTR, AFTR, AFLSAR W/4 DEVS, AFOUA ~ / 5  DEVS, AFGCM W/6 DEVS. 

i.  Stmt of Sv:  TMS: (21) Yrs  (07) Mos  (11) Das 
TAMS:  (21) Yrs  (02) Mos  (20) Das 

4 .   BASIS ADVANCED FOR REVIEW:  Appln  (DD Fm 293) dtd 01 Oct  05. 

(Change Discharge to Honorable) 

ISSUES ATTACHED TO BRIEF. 

ATCH 
1. Applicant's Issues. 
2. Nine Character References. 
3. Four Commendation Medal Citations. 
4. Three Training Certificates. 
5. Seventeen Airman Performance Reports. 
7. Three Enlisted Performance Reports. 

JUSTIFICATION FOR UPGRADE REQUEST 

I disagree with the decision to not  give me an honorable discharge after over twenty 
years of service because it does not reflect  accurately my  character of  service.  I  have 
over  twenty  years  of  stellar performance  reports  and  four  Commendation medals  for 
distinguished service.  I volunteered and served for duty overseas for the majority of my 
I  completed  all  required  Professional  Military  Education  and  completed the 
service. 
Senior NCO correspondence course to refine my leadership abilities.  I have always put 
service and country before myself throughout my entire career. 

I will admit that I exercised poor judgement while surfing the internet as I freely admit 
that I accessed nude photos of underage girls.  I did this off-duty in my own home and 
never ever used  a government computer in this manner.  I never committed a hands-on 
offence nor would  1 ever.  I have been required to take numerous polygraphs to  support 
this.  I am continuously making good progress in my counseling as required by probation 
and have abided by my conditions of probation with no problems at all.  My dear wife 
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j is still with me and we still remains a loving family with our two children.  We 
just recently celebrated our 1 6th anniversary. 

After filing bankruptcy and  losing our home we managed to  rebuild  our lives.  Both 
!and I were able to find full time jobs and we eventually bought anot.@rh?-ye.  I 

m - - - - - - - - - -  

C......... 

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l 

found  a  great  job  as an  apprentice  in  a  commercial  plumbing  firm  and j 
employed with the County as a nurse's assistant. 

I .  

+la  fi ;g- - $;A&  e be74) 

1 think it's  totally unjust that my family and I should be denied my0- 

fecause 
otherwise flawless  20  year  career..  Please consider 

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of  one mistake  I  made  during 
carellly everything that I have submitted to you. 

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Respectfully,  i ------------------------. 

61" Fighter Squadron (AETC) 
Luke Air Force Base, Arizona 

DATE: 

4  MAR  2CE 

161 FS 

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MEMORANPUM FOR MSGT : 
FROM:  61 FS/CC 
SUBJECT: Notification Letter - Board Rearing 
1. I am recommending your discharge h m  the United States Air Force for a Civilian 
Conviction and Sexual Perversion.  The authority for this action is AFPD 36-32 and AFI 36- 
3208, paragraphs 5.51 and 5.52.1 re.s&xtively.  Copies of the docuhents to be forwarded to the 
separation authority to support this recommendation are attached. 

. . - 

2.  The reasons for this action are: 

a  On 1 Feb 02, you were convicted in the Superior Court of Arizona, Maricopa County, on 
two counts of the following: Attempted Sexual Exploitation of a Minor, a Dangerous Crime  ; 
Against Children in the Second Degree.  Your sentence includes incarceration for 6 months, 
lifetime probation, restitution, fhes, and fees. 

....- ;-u, 
.- 

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photographs 
thinking about having sex with a child after looking at these porngraphic photographs.  These 
acts constitute sexual perversion. 

on or about. U&$q 01, you viewed numerous 
.., 
~dditionally;"j%i&tt~ to masturbating while 

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3.  This action could result in your separation with either honorable, general, or an under other 
than honorable conditions. I am recommending that you receive an under other than honorable 
conditions discharge.  The General Court-Martial convening authority will make the h a 1  
decision in this matter.  If you are discharged, you will be ineligible for reenlistment in the Air 
Force and will probably be denied enlistment in any component of the armed forces and any 
special pay, bonus, or education assistance funds may be subject to recoupment. 

4.  You have the right to: 

a.  Consult legal counsel. 

b.  Present your case to an administrative discharge board. 

c.  Be represented by legal counsel at an administrative discharge board hearing. 

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d.  Submit statements in your own behalf in addition to, or in lieu of, the board pearhis. 

e.  Waive the above rights.  You must consult legal counsel before making a decision to 

waive any of your rights. 

I - - - - - - - - - - - - - - -  

i, Area Defense Counsel, has been obtained to assist you.  An appointment 
5.  Ca~c..-.-....-.-.. 
has been scheduled for you to consult him on -3 t&,  c 6 2  
Instead of the appointed counsel, you may have another, if the lawyer you request 1s in the active 
military service, and is reasonably available according to AFI 5 1-201.  In addition to military 
counsel, you have the right to employ civilian counsel at your own expense.  Civilian counsel, if 
employed, must be readily available. 

at m(3 hours. 

6, Confer with your counsel and reply, in writing, within 7 work days, sptcifyhg the rights you 
choose to exercise.  The statement must be signed in the presence of your counsel, who also will 
sign it.  If you waive your right to a hearing before an administrative discharge board, you may 
submit written statement(s) in your own behalf.  I will send the statement(s) to the separation 
authority with the case file to be considexed with this recommendation.  Failure to respond, 
constitutes a waiver of your right to a board hearing. 

7.  & atter separation action starts, you attain the additional service necessary for retirement (20 
years active service creditable for retirement), you may apply for retirement; however, the 
convening authority may decide to complete the discharge processing action before referral to 
the Office of the Secretary of the Air Force. 

a.  Your retirement application must: 

(1)  Be prepared and submitted according to AFI 36-3208. 

(2)  Request that retirement be effective the 1''  day of the 2nd month following the current 

month, subject to your availability. 

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b.  Submission of the application for retirement will not cancel the rtcommended discharge 

action.  Discharge processing may be suspended, pending a decision on the retirement 
application. 

c.  If the application for retirement in lieu of hrther processing is: 

(1)  Approved, discharge processing wiU be discontinued. 

(2) Disapproved, the discharge action will be processed to completion.  If discharge is 

approved, the case file and the retirement application will be forwarded to HQ 
AFMPCJDPMARS, 550 C Street, Suite I I, Randolph AFB TX 78150-4713, for further 
processing. 

8.  Any personal information you fiunish in the rebuttal is covered by the Privacy Act of 1974. 
A copy of AFT  36-3208 is available for your use in the Orderly Room. 

, 
A 

9.  If you request a board hearing and you fail to appear without good cause, your failure to 
appear constitutes a waiver of your right to be present at the hearing. 

10. The discharge board or, the discharge authority will make the fmding and recommendations 
required under 10 U.S.C.  200S(g). 

11.  Exe~uto the rocoipt of notification memorandum and return it to me immediately. 

.--------------------------------------m 
Commander 

Attachments: 
1.  Transcript of Conviction-Superior Court of Maricopa County, AZ 
2,  Drug Use  ' 
3.  Letter of Reprimand, dated 23 Aug 0 1 
4.  ARS  13-3553 
5.  ARS 13-604.01